NFT Intellectual Property and Copyright 5 — Questions and Answers
Question 1: A generative AI creates an image that is minted as an NFT. Under current U.S. law, who holds the copyright?
- The AI system itself
- The company that trained the AI
- Potentially no one — AI-generated works may lack copyright protection (Correct answer)
- The NFT buyer automatically
Correct answer: Potentially no one — AI-generated works may lack copyright protection
The U.S. Copyright Office has held that purely AI-generated works without sufficient human authorship are not eligible for copyright protection.
Question 2: What is a 'moral right' in the context of art copyright, and how does it apply to NFTs?
- The right to earn money from artwork
- The right of the artist to attribution and to object to distortion of their work (Correct answer)
- The buyer's right to resell freely
- The platform's right to moderate content
Correct answer: The right of the artist to attribution and to object to distortion of their work
Moral rights protect an artist's personal connection to their work, including attribution and integrity rights; the U.S. grants limited moral rights to visual art under VARA.
Question 3: An NFT collection titled 'CryptoCats' is launched after an existing trademark 'CryptoCats' is registered. What issue arises?
- Patent dispute
- Trademark infringement or dilution (Correct answer)
- Copyright infringement
- Trade dress violation only
Correct answer: Trademark infringement or dilution
Using a registered trademark in commerce without authorization can constitute trademark infringement, especially if it causes consumer confusion.
Question 4: What does 'first sale doctrine' mean in the context of NFTs?
- The first sale price determines future royalties
- Once a copyright owner sells a copy, they cannot control its resale (Correct answer)
- The creator must approve all secondary sales
- NFTs cannot be resold after first sale
Correct answer: Once a copyright owner sells a copy, they cannot control its resale
The first sale doctrine (17 U.S.C. § 109) allows the purchaser of a lawfully made copy to resell it without copyright holder consent, though its application to NFTs is still debated.
Question 5: An artist enters a collaboration where they contribute designs to a joint NFT project. What type of authorship applies?
- Sole authorship
- Work for hire
- Joint authorship (Correct answer)
- Anonymous authorship
Correct answer: Joint authorship
When two or more authors contribute copyrightable expression with the intent to merge their work into a unitary whole, the result is a jointly authored work under U.S. copyright law.
Question 6: Which scenario most clearly constitutes copyright infringement in the NFT context?
- Minting your own original digital painting as an NFT
- Creating fan art of a character under a permissive CC license
- Scanning and minting a museum's public domain painting without transformation (Correct answer)
- Selling an NFT you legally purchased
Correct answer: Scanning and minting a museum's public domain painting without transformation
While the underlying painting may be public domain, a high-resolution scan with sufficient originality may be protected; however, simply minting another artist's copyrighted work without permission is clear infringement.
Question 7: What is the primary purpose of including IP terms in an NFT's 'Terms of Service' or accompanying license document?
- To set the gas fee for minting
- To clearly define what rights buyers receive regarding the underlying artwork (Correct answer)
- To register the work with the Copyright Office
- To establish the NFT's rarity tier
Correct answer: To clearly define what rights buyers receive regarding the underlying artwork
IP terms in NFT licenses specify the scope of rights granted to buyers — such as personal display, commercial use, or derivative work creation — reducing legal ambiguity.
NFT Intellectual Property and Copyright 5
A generative AI creates an image that is minted as an NFT.
Under current U.S. law, who holds the copyright?